What is concubinage?

Concubinage is committed by any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place (Article 334 of the Revised Penal Code or RPC).

What is adultery?

Adultery means the carnal relation between a married woman and a man who is not her husband, the latter knowing her to be married, even if the marriage be subsequently declared void (RPC, Article 333). Each sexual intercourse constitutes a crime of adultery.

Adultery vs. Concubinage

1. Adultery is committed by a wife (who must also be charged together with the other man), while concubinage is committed by a husband (who must be charged together with the concubine).

2. Proof of sexual intercourse is enough in adultery, but in concubinage, the prosecution must prove that the sexual intercourse must be under scandalous circumstances, or that the husband kept a mistress in the conjugal dwelling or cohabited with her in any other place.

3. The penalty for concubinage is lower than that of adultery. The penalty for the concubine is only destierro, while the penalty for the man other in adultery is the same as that of the guilty wife.

What is destierro?

Destierro means banishment or only a prohibition from residing within the radius of 25 kilometers from the actual residence of the accused for a specified length of time. It is not imprisonment. [See Destierro: Definition, Nature and Jurisdiction]

Who can file the action for adultery or concubinage?

Only the offended spouse can legally file the complaint for adultery or concubinage. The marital status must be present at the time of filing the criminal action. In other words, the offended spouse must still be married to the accused spouse at the time of the filing of the complaint.

Who must be prosecuted?

The offended party cannot institute the criminal charge without including both guilty parties (the offending spouse and the paramour), if both are alive.

What is the effect of consent or pardon by the offended spouse?

The criminal charge cannot prosper if the offended spouse has consented to the offense or pardoned the offenders. Pardon can be express or implied. An example of express pardon is when the offended party in writing or in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their act. There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. Pardon must come before the institution of the criminal action and both offenders must be pardoned by the offended party.

What is bigamy?

Bigamy is basically the act of marrying again while the first marriage is still subsisting. It is defined under Article 349 of the RPC as the contracting of a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding.

What are the elements that must be proved in a prosecution for bigamy?

In a case for bigamy, all the following matters or “elements” must be shown by the prosecution:

1. The offender has been legally married.

2. The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code.

3. He/she contracts a second or subsequent marriage.

4. The second or subsequent marriage has all the essential requisites for validity.

What is the effect of a pending petition for annulment or a declaration of nullity of marriage on a criminal case for bigamy?

How is bigamy different from adultery/concubinage?

In adultery/concubinage, the law requires that both culprits, if both are alive, should he prosecuted or included in the information. In bigamy, the second spouse could be charged only if she/he had knowledge of the previous undissolved marriage of the accused. Bigamy is a public offense and a crime against status, while adultery and concubinage are private offenses and are crimes against chastity. In adultery/concubinage, pardon by the offended party will bar the prosecution of the case, which is not so in bigamy.

What if I killed or injured my spouse when I caught him/her in the act of committing sexual intercourse with another person?

The law provides that “any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro” (RPC, Article 247). The accused spouse, which could be the husband or the wife, must prove the following:

1. A legally married person (or a parent) surprises his spouse (or his daughter, under 18 years of age and living with him), in the act of committing sexual intercourse with another person.

2. He or she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter.

3. He has not promoted or facilitated the prostitution of his wife (or daughter) or that he or she has not consented to the infidelity of the other spouse.

The accused must proved that he/she actually surprised the other spouse in flagrante delicto (or in the act of doing the deed), and that he/she killed the other spouse and/or the other party during or immediately thereafter.

Gud afternoon .. Me and my partner were living together with 1 chirld for 9 almost 9 years .. Resently i found out that he has another women for 3 mos.now. he got an accident a month ago. He undergoes brain surgery.. When he was at the hospital, i found out about the other girl on his phone . There were lots of sweet conversations.. Now its been 2 mos since the accident .. My partner isnt fully recovered yet. But this girl keeps on chatting at him again .. Wat legal action do i have to do

I just want to ask if how can i file and what case can i file to my ex wife who is cheated on me 2 years ago, she confested me that she had sex with her other man before and she choose that time for us to be seperated that’s why i had no choice but to let her go. Now that we are having both seperate lives with our current partners, she wanted me to sign the papers that she need for them to go to canada with our daughter, i refused to sign that because i don’t want my child to leave me, then my ex wife told me that if i will not sign that papers she will file a case against me and my current partner. For me she is so selfish right now, because we both know who is the one to blame before, that’s why we just seperated.. Pls.help me how can i get into this. If i we’re to file a case against her, what case should i file? I hope you can help me. Thank you very much!

My husband had been cheating on me for a little while. When we first separated, I thought we were just taking a break. Then he started telling me, that it was all my fault I didn’t show that I appreciated him, or showed him love. For a about a year & a half. I started thinking back & that was around the time I started questioning him about talking to someone else or seeing someone else. Of course he said no. Our phones are on the same bill so I logged in to our account & seen this one number that he was txting just about every day for a few months. Well I went back even further, to June of 2015. He finally admitted he had been “talking” to her since April of 2015. I eventually found out he had got a hotel roomy for them to meet. Twice that I know of. He kept telling me he wasn’t seeing her, & then finally admitted he does care for her. But he was not still seeing her. Which I knew was a lie. One evening I showed up at the place where he was staying & she was there. They hid her car so I wouldn’t think she was there. She admitted to meeting him at the hotel’s. Can I file adultery charges against him?

My wife proclaimed us “separated” back in October 2016; however, she never moved out of my house. She wanted to remain living here instead of moving in with her mom. I wanted to work things out so I agreed she could live here. Since then she has been partying, drinking and smoking marijuana. All that she has openly admitted to. Also, she has openly admitted to committing adultery on two separate occasions with two different men. We have a child together and all I wanted to do is be able to work things out. She on the other hand does not. With this being said, we still occasionally have engaged in sexual activities, knowing what she has done.

Because we still live together and because we still have had sexual intercourse since she admitted to the cheating, can adultery be used against her in court?

The only reason I continued to have sexual relations with her was because I was doing everything possible to fix our marriage. Clearly there is nothing I can do to fix it. I never consented to her cheating but I guess the court may look at it as if I was pardoning her for her actions by continuing to have sex with her.

Attorney, I would like to ask po if what case can be filed if it happens that an unmarried woman had and still have sex with a married man? ano po ba yung case na maifa-file sa babae? and for the married man? the woman is in UAE while the man also works in UAE and maybe parang may anak sila.